' MALIK MANZOOR HUSSAIN, J.--- Through this single judgment, we intend to dispose of Writ Petitions Nos.3398-P/2014, 3556/2014, 2242-P/2014 and 1833-P/2014 as common question of law and facts are involved in all the petitions. In the petitions, petitioners have challenged the mode of appointment of Parisians appeared in advertisement through test and interview, being against the prescribed manner provided under Paragraph 3.6 of Land Records Manual.
2. The background to constitute this special three members Bench is that writ petition, titled "Amir Khan v. Government bearing No.129/2012, this Court (Abbottabad Bench) was allowed with the direction that appointment of Parisians be made after conducting test and inte?View and displaying of merit list while in a case titled Zafar Iqbal v. Government in W.P. No.278-D/2012 (D.I.
Khan Bench) passed directions that the petitioner be appointed as patwari according to his position and seniority in the Register of Patwar Candidate. Since the recruitment of Parisians are made under the existing policy of the Government, therefore, Assistant Secretary (Establishment) addressed letter to Registrar of this Court bearing No.Estt.VII/ DPC/DIK 23693, Peshawar dated 2-12- 2014, to set the controversy at rest arising out in the above referred judgments of this Court.
Accordingly, this larger Bench of three members was constituted by the Hon'ble Chief Justice and the Bench is seized of the matter to determine the question as to whether appointments of patwaris are to be made under Paragraph 3.6 of Land Records Manual or otherwise. Since number of writ petitions were pending disposal wherein similar relief was sought and question of implementation of procedure provided for appointment of Patwaris under Paragraph 3.6 of Land Records Manual was prayed, therefore, by order of Hon'ble Chief Justice all the ripe up cases were clubbed together and were fixed for today which we intend to dispose of through this single judgment.
3. Learned counsel for the petitioners contended that the petitioners passed the Patwar Examination in year, 2006, and their names are mentioned in the Register Patwar maintained under Paragraph 3.6 of the Land Records Manual. They contended that petitioners are on the top of seniority list of the patwar Pass List, therefore, the respondents were required to appoint them as Patwaris in accordance with seniority list but instead of following the rules and policy, issued advertisement dated 30-5-2014 and invited applications from the candidates who passed the Patwar examination through Test and interview, which is in utter violation of the provisions of Land Record Manual. They contended that while advertising the post of Parisians, the respondents have adopted different criteria than that of the existing rules and policy, therefore, their act is illegal, unlawful, without lawful authority.
4. Learned A.A.-G. Appearing on behalf of the respondents contended that the competent authority has the power to advertise a particular post. He further contended that open merit competition is better option than that of appointment to be made batch-wise.
5. We have examined the respective contentions as advanced on behalf of the parties in the light of relevant provisions of law and record perused.
6. The perusal of judgment in W.P No.129/2012 reveals that the petitioners had challenged the appointment order to be illegal on the ground that it was made beyond the criteria of appointment as laid down by the Government and the appointment was made without advertising the posts while ignoring the basic legal and fundamental rights of the petitioners guaranteed by the Constitution. The writ petition was disposed of on 10-4-2012 and relevant Paras Nos.11 and 12 of the judgment is as under:- "According to para 3.6 list of patwar pass persons, in each Sub-Division a merit list of all patwar pass persons per year-wise commencement of patwar Course shall be maintained by the Sub- Divisional Collector/Political Assistant in P-1 given in Appendix "a" with a view to have ready information about the availability of eligible persons in the Sub-Division to facilitate filling up the vacancies according to merit irrespective of the fact whether he has passed Field or Settlement course from the Patwar School as there is no distinction regarding settlement and field school.
However, the rules governing the subject matter clearly direct appointment of Patwaris strictly in accordance with Service Rules and the Recruitment Policy. The maximum educational qualification for the patwari is now FA/F.Sc. As per rules, the official respondents are required to display the merit list and candidates be given appointment according to it, subject to passing of test and interview (underlining is ours) and no discrimination be made.
12. In the light of the above, the three writ petitions stand disposed of accordingly."
' In a Writ Petition No.278/2012, the petitioner had prayed issuance of an appropriate writ for directions to the respondents to appoint him as Patwari on the basis of his merit position as well as in pursuance of the order dated 16-7-2011 passed by the respondent No.3 on his appeal which was disposed of by the Division Bench of this Court at D.I. Khan with the following observations:--- "For the aforesaid discussion and reasons, we admit and allow this petition and direct the respondents to appoint the petitioner as Patwari according to his position and seniority in the register of patwar candidates. (underlining is ours)."
7. Admittedly, the recruitment of patwaris is governed by the rules as contained in Chapter-3 of Paragraph 3.6 of Land Records Manual, which reads as thus,--- "3.6. List of Patwar Pass persons.--- (1) For each Sub-Division, a list of all Patwar Pass persons shall be maintained by the Sub-Divisional Collector/Political Assistant in Form P-1 given in Appendix "G" with a view to have ready information about the availability of eligible persons in the Sub-Division to facilitate filling up the vacancies. However, the appointment of Patwaris shall be made strictly in accordance with Service Rules and the Recruitment Policy as my be applicable at the relevant time.
(2) Maximum Educational qualification for the Patwari is F.A/intermediate. The names of only those persons shall be enrolled, who are bona fide residents of the concerned Sub-Division.
(3) The name of the eligible persons shall be added to the list as and when the result of the Patwar Examination is received and no eligible person shall be refused enrollment.
(4) The aforesaid list shall be verified and up-dated by the Collector concerned at least once in a year so as to exclude the names of those, who have become un-available on account of death, migration, employment on any other post, etc The bare reading of above Rules clearly shows that appointments of Patwaris are to be made from amongst the list of candidates of all the Patwar Pass persons, maintained by Sub-Divisional Collector in Form P1 appendix "G" under the rules, subject to observance of service Rules and the Recruitment policy prevalent at the relevant time. The method of Recruitment of Patwaris has been given in Service Rules, i.e., The West Pakistan (Northern Zone) Patwari Subordinate Service Rules, 1963 and relevant Para of Rules 5 and 7 are reproduced as under:- ' Method of recruitment.--- (1) Recruitment to the Service shall be made by initial recruitment.
(2) Vacancies in the Service shall be reserved for bona fide residents of the District in which they occur.
7. Qualification.- (1) No person shall be appointed to the Service unless he is able to read and write Urdu and has passed---
(i) [The Vernacular Final Examination or Anglo Vernacular Middle Examination] and
(ii) The Patwar Examination from a Patwar School established in accordance with paragraph 3.6 of the Land Record Manual.
' A look at the above paragraph and service rules, ibid, reveals that a prescribed procedure for appointment has been given in it and there is no intricacy to understand its meaning as the same is clear and has to be interpreted in its true sense. A question of interpretation arises, when one side submits that a particular provision of an enactment covers the facts of the case and the other side submits that it does not. When the words are not clear or the provision in question is confusing, then the duty of interpretation arises and if the language 4 clear and explicit the Court must give effect to it. Admitted position in the present petitions is that the petitioners in the instant writ petitions and in the above referred decided writ petitions have not challenged the existing policy for appointment of Patwaris. The petitioners only sought for their appointments in accordance with the prevalent rules and policy as test and interview is not prerequisite for recruitment of patwari anywhere in the rules or in Land Records Manual.
8. The recruitment policy has always been formulated by the Government as part of the delegated legislation. Making policy is the prerogative of the Government and the Court in exercise of its constitutional jurisdiction cannot make policy for the Government. The Court cannot interfere in the Government policy unless there is infringement of legal rights or found to be ultra vires to the Constitution and injunction of Islam. In a human rights case reported in (2008 SCM R 531), Hon'ble the apex Court observed that:- "This is, however, prerogative of the Government to grant certain privileges to a particular category of its employees on the basis of reasonable classification and the law is that the Court should not ordinarily interfere in the matter falling within the exclusive domain of Government or nullify its legal and constitutional authority. The courts may not undo the action taken by the Government in its discretion, unless there is infringement of a legal rights, rather the courts in the light of aim and object of the action should broadly regard the authority, conferred in the Government. This is however, well settled principle of law that discretionary power confided on the Government should be exercised reasonably and subject to the existence of the essential conditions required for exercise of such powers within the scope of law."
In another case titled Dr. Alyas Qadeer Tahir v. Secretary (2014 SCM R 997) Hon'ble the Supreme Court observed that:--- "Enactments of rules and amendments therein was the prerogative of the Government--- Government could enact and amend rules according to the needs and exigencies of service-- Institutional interest shaped structure of a service and not individual interest."
9. The Constitution of Islamic Republic of Pakistan envisages the dichotomy of powers among st three organs of the State, namely, the Legislature, Executive and the Judiciary. The legislature is assigned the task of law making, the executive to execute such law and the Judiciary to interpret the laws. None of the organs of the State can encroach upon the field of the others. Reliance is placed on the case of Executive District Officer (Revenue) v. Ljaz, Hussain and another (2011 SCM R 1864), wherein Hon'ble the apex Court has observed that:--- "The framing of the recruitment policy and the rules thereunder, admittedly, fall in the executive domain. The Constitution of Islamic Republic of Pakistan is based on the well known principle of trichotomy of powers where legislature is vested with the function of law making, the Executive with its enforcement and Judiciary of interpreting the law. The court can neither assume the role of a policy ,maker or that of a law maker."
10. The rules and policy is the formal expression of the will of the legislative organ of the State. There is clear-cut procedure for appointment of Patwaris in the Land Records Manual as well as in the West Pakistan (Northern Zone) Patwar Subordinate Service Rules, 1963. The arguments of learned A.A.-G. That the object of advertisement and test and interview is to ensure the fair selection, minimize the chances of discretion and favoritism, therefore, test and interview from among st the list of the candidates of patwar pass persons is the better course than that of the selection provided in the land Record Manual has no force because competent authority has the powers to bring changes in the relevant rules for appointment on a particular post by making amendment in order to maintain efficiency in the services. If conduct of test and interview for appointment of Patwari keeping in view the exigency of services is necessary, it is the prerogative of the Government to make amendment in this regard in the relevant rules. In this respect, reliance is placed on the case titled Zafar Iqbal and another v. Director Secondary Education, Multan Division and 3 others (2006 SCM R 1427) wherein, the august Supreme Court has obseryed that:- "The Government is always empowered to change the promotion policy and the domain of the Government to prescribe the qualification for a particular post through amendment in the relevant rules, is not challenge able. This is also a settled law that notwithstanding fulfillment of the requirement qualification and other conditions contained in the rules, the promotion cannot be claimed as a vested right."
11. For what has been discussed above, we are of the view that until and unless rules prescribed for appointment of Patwaris provided in the Land Record Manual as well as service rules with regard to method of recruitment of patwaris are not amended or struck down, the respondents are bound to make appointment in accordance with the existing rules and policy governing the subject matter as it is settled principle for administration of justice that when law requires a thing to be done in a particular manner then that thing be done in that particular manner and not otherwise.
' For what has been discussed above, the instant writ petition along with Writ Petitions Nos.3556/2014, 2242-P/2014 and 1833-P/2014 are disposed of accordingly.
' QALANDAR ALI KHAN, J.--- While sharing and endorsing judgment of Hon'ble Mr. Justice Malik Manzoor Hussain, reiterating strict adherence to the method of recruitment of PATWARIS prescribed in the Land Records Manual as well as service rules, unless such rules are amended or struck down, I may venture to add that there is an inbuilt mechanism in paragraph 3.6 of the Land Records Manual, providing sufficient space to adopt a dynamic approach towards appointment of PATWARIS in order to achieve the ultimate object of ensuring merit, by laying down in paragraph 3.6 of the Land Record Manual that "the appointment of PATWARIS shall be made strictly in accordance with service rules and the recruitment policy as may be applicable at the relevant time."
2. In the presence of the above quoted provision, the directions with regard to test and interview can, by no stretch of imagination, be construed as a departure from the established practice under the aforesaid provision to maintain a list of PATWAR passed persons to facilitate filling of available vacancies of PATWARIS, which provision was never lost sight of and was, rather, reiterated in the judgment of this Court wherein it was specifically directed to display the merit list and candidates be given appointment according to it as per rules, of course, subject to passing of test and interview. As opposed to the general perception, the position adopted by the Hon'ble Bench of this Court at Abbottabad in the case of 'Amir Khan v. Government etc.' (W.P. No.129-A of 2012), was in no way in conflict with the direction contained in the judgment of D.I.Khan Bench of this Court in the case of 'Zafar Iqbal v. Senior Member Board of Revenue and others' (W.P. No.278-D of 2012) whereby the respondents were directed to appoint the petitioner as PATWARI according to his position and seniority in the register of PATWAR candidates.
3. It may be added here that nowhere in the two seemingly inconsistent judgments it was held that the pro Vision of paragraph 3.6 of Land Records Manual has become obsolete or redundant owing to changes in recruitment policy requiring selection of civil servants only after test and interview; while, on the other hand, the judgment dated 10-4-2012 also laid emphasis on following the existing rules by making appointment from the merit list as per rules while at the same time ensuring merit through test and interview. There is, as such, neither any conflict nor inconsistency in the two judgments of this Court dated 10-4-2012 and 31-10-2013. The problem lies elsewhere.
4. Unfortunately, we are enduring the malady of mistrust which has become hallmark of our society, having crept into our day to day life over a period of time, breeding skepticism about the integrity of everything not of our liking or against our interest, for which all are to share the blame, including those at the helm of affairs. The visible growing loss of faith of general public is not without reason, as instances reinforcing their lack of faith abound. It is said that all the major institutions in the country have lost their credibility, and the revenue department is not an exception, rather is perceived generally as the front runner. In a highly politicized and polarized society, like ours, merit is the first casualty. The general perception is that PATWARI is a lucrative post. Therefore, appointment to the post would require greater degree of transparency, credibility and strict adherence to rules and merit in order to restore faith in the process.
5. The rationale of provision of paragraph 3.6 of Land Records Manual seems to ensure induction of qualified persons already equipped with the requisite knowledge of PATWAR having received training and passed PATWAR examination from the PATWAR school; but there is no dearth of cases of those PATWARIS who, no doubt, had received the requisite training and had passed the examination but were lacking the capability to shoulder the responsibility of this specialized job.
There are, on the other hand, serious complaints about appointment ,of PATWARIS, only, through test and interview, allegedly, marred by extraneous considerations, and selections on considerations other than merit. In the circumstances, there is need not only to ensure adherence to the existing rules under paragraph 3.6 of Land Records Manual but also to:devise ways and means to uphold merit, which does not appear next to impossible even within the framework of existing appointment rules.
6. However, in case the existing rules are found too stringent to allow space for the desired reforms, nothing should deter the concerned authorities to undertake the exercise of introducing suitable amendments in the rules for realization of the object. If so advised, separate and specific marks be assigned, in a transparent manner, to PATWAR examination, other qualification(s) of the candidate, his knowledge and skill acquired in the field, together with other requisite measures deemed essential for the job, in order to allay misgivings prevalent about appointment of Patwaris in the Revenue Department, also causing discontent and breeding frustration in the department and general public alike, and contributing to the general feeling about lack of good governance.